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Danny Ryer v The Highland Council, [2013] CSOH 95, 13 June 2013


Proof: Damages (Scotland) Act 2011 :Section 4(3)(b)(ii) and (iii): the pursuer brought an action for damages arising out of his mother's death when her car left a road on a bend and she was killed. The accident happened shortly before 6am. Temperatures had been low. The Defenders were responsible for maintenance (including gritting) of the road. In particular, they had a duty under section 34 of the Roads (Scotland) Act 1984 to take such steps as were reasonable to prevent snow and ice endangering the safe passage of pedestrians and vehicles over public roads. The defenders used both Met Office information and local sensors to identify present and developing weather and road conditions. They would then employ the use of a Winter Maintenance Policy which conferred a statutory duty on the defenders with guidance about how they should maintain roads in winter conditions. The guidance did not provide for gritting of the roads between 9pm and 6am. Evidence was led about the mechanism of the crash. Unfortunately, very little evidence was avaiable about the speed of the vehicle when it lost control. The pursuer's case was that the defenders breached their common law duty; that they should have treated the road on the evening before the accident; that they should have monitered conditions overnight by patrol or sensors and ; that those observations would or should have led to them ordering treatment of the road by salting or gritting. It was conceded that the second and third grounds were an attack on the defenders policy to carry out no treatment of any roads between 9pm and 6am on weekday nights. Considered: whether the attack on the defenders policy - it being the subject of statutory duties - was non-justiciable since that may involve substituting the opinion of the court with a decision made in the exercise of a statutory discretion; the circumstances of the incident and; the procedures employed by the defenders on the evening and night before the accident. Held: decree of absolvitor granted; to interfere with the policy of the defenders was probably not justiciable since it was a decision made in the exercise of a statutory discretion; in any event, there was insufficient evidence to show that different procedures during the night would have prevented the accident. Also considered: the damages which would have been awarded for loss of society, had the court found in the pursuer's favour.